What’s Up With Anti-BDS Legislation?

In the past several months, numerous state legislatures have considered legislation and resolutions targeting the Boycotts, Divestment, and Sanctions movement, which advocates for Palestinian human rights. There are also reports that other legislatures may be considering similar resolutions.

Why Does BORDC/DDF Care?

BORDC/DDF is a domestic civil liberties group primarily concerned with the fulfillment of the promise of the Bill of Rights. As such, while we recognize that many of our supporters have passionate opinions on a wide range of issues, we do not take positions on international issues—like the ones that the BDS movement seeks to address. However, we do support fully the First Amendment right of activists to take positions on political issues and organize free of state repression.

In the last several years, student groups involved in the BDS movement have come under sanction for their views from university administrators, states legislatures and congress have considered legislation and resolutions targeting the BDS movement, and Presidential candidates have pledged to crack down on the movement if elected, including one who went so far as to say he would use the Attorney General to “stop the BDS movement.”

BORDC/DDF has dealt with similar government-supported campaigns against social movements, like the crackdown on the animal rights movement—by opposing attacks on the First Amendment rights of activists, while pointing out how they are part of a larger pattern of repression targeting a specific movement and working directly with the groups targeted by the state to organize against repression. We believe this is the only way to effectively agitate for civil liberties under such circumstances. Working with social movements under siege is not the same as endorsing the end goals or views of the targeted movement. It is a means of building an effective movement to uphold civil liberties.

Why Are These Bills Unconstitutional?

In the past several months we have seen bills aimed at doing one of two things (and often times both). One is to prohibit state agencies from contracting with persons, businesses, and corporations, because of their political beliefs (participating in BDS). The other is to prohibit the state from investing its pension funds in businesses, because of their political beliefs (participating in BDS).

You might ask, “why can’t the state boycott the boycotters?” After all, states can boycott South Africa, Sudan, and Iran, for example. The answer lies in the Constitution. The state cannot “boycott” people because of their political views, any more than it could decide to “boycott” people because of their race, sex, national origin, etc. The Constitution prohibits these acts by the state.

Here are the key things to remember about the “boycotting the boycotters argument”:

The Supreme Court has ruled that boycotts for political, economic, and social change are political speech and thus protected under the First Amendment.

One cannot be penalized for exercising the right of free speech.

This includes appropriation decisions–even here the government cannot appropriate money based on the political views of the recipient. The Supreme Court has affirmed this principle.

Furthermore, the Supreme Court has ruled that you cannot deny contracts to person because of their political affiliations.

A human rights boycott of Israel is political speech, denying someone a contract based on political speech is penalizing them for their political speech, thus it is not constitutionally permissible.

Another important thing to remember is that the First Amendment does not permit viewpoint discrimination. If a bill singles out only one viewpoint on an issue—in this case the use of boycotts to advocate for Palestinian rights—it violates this principle. This problem cannot be remedied, however, by making the bills so broad to encompass any boycott ever. Boycotts are political speech and the state cannot seek to stop people from expressing themselves on political issues. A bill stating that recipients of public benefits could never express political opinions of any variety would certainly be viewpoint neutral, but it would be an unconstitutional suppression of political speech nonetheless.

The Chilling Effect

While it is important to point out what these bills aim to do—suppress political speech by penalizing individuals for expressing themselves—it is also important to remember what they do not do. These bills do not criminalize BDS advocacy. However, they have a much broader effect and intent than just their immediate aims. By singling out a particular viewpoint for repression, it sends a wider message to those who participate in the BDS movement or are considering doing so, chilling their speech.

It is no secret that these bills have become more frequent as student governments, churches, labor unions, and academic associations have begun seriously debating whether to support BDS. While it is up to their members to make these decisions, if the state has made it clear that supporters of BDS are legitimate targets for denial of public benefits ( as did an earlier wave of bills specifically targeted academic associations) it certainly has the potential to impact these decisions.

One of the most disturbing aspects of these bills is that many of them call for the state to develop a blacklist of companies who support the BDS movement. In other words, the state plans to make a list of individuals and businesses’ First Amendment political views. The New York bill explicitly mentioned that it would use “publicly available sources.” Such actions create a climate of fear and intimidation in which people will—rightly or wrongly—refrain from exercising their constitutional rights.

The use of this type of intimidation designed to provoke self-censorship amongst unpopular views is reminiscent of the McCarthy area and is every bit as odious as more direct attempts at repression.

What About Discrimination?

Many individuals have tried to argue that anti-BDS legislation is constitutional, because it is aimed preventing discrimination.

Of course, the Supreme Court has also been pretty clear that the First Amendment for the most part does not exempt from people from complying with anti-discrimination laws.

A very famous case was when Bob Jones University lost its tax exempt status, because it is engaged in racial discrimination. They tried to argue that they had a First Amendment freedom of religion right and the Supreme Court rejected it.

So if a contractor did discriminate on the basis of religion, race, sex, etc. a state would be within their rights not to do business with them (though they would most likely already be in trouble since there are federal and state laws banning employment discrimination).

As far as boycotts of Israel go, BORDC/DDF takes no position on international issues or the wisdom of boycotts concerning political issues outside our narrow scope of defending civil liberties. As a result, we do not have a position on the BDS movement. However, it is a political movement and it purports to be seeking Israel’s compliance with international human rights law. Such a movement, like the very broad boycotts against South Africa, Chile, Burma, Sudan, Arizona, etc. is the type of political speech that deserves to be protected. These are not the same as discrimination on the basis of national origin, religion, race, ethnicity, etc. and attempts to conflate the two are an attempt to smear the BDS movement and make state repression of it more justifiable.

What to Do?

As bills have popped up around the country, BORDC/DDF has worked with activists on the ground, helped organize lobby days, trained activists in grassroots advocacy, and drafted alternative legislation that would affirm our Constitutional right to boycott.

Additionally, we have also alerted our members in individual states and provided them with easy ways to contact to their legislators to tell them to stand up for free speech. Below is a running list of such state-by-state action alerts. As more states consider anti-free speech, anti-BDS bills we will update this list.